TMI Blog2008 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of an order dated 12th May, 1979 by respondent No. 3 was dismissed. 3. Appellant is a company incorporated under the Companies Act, 1956. It manufactures whisky under the mark 'Peter Scot'. Manufacture of the said product allegedly was started by the company in May, 1968. An application was filed by it for registration of its mark before the respondent No. 3. Appellant was informed that its application was accepted and allowed to proceed with the advertisement, subject to the condition that the mark would be treated as associated with Reg. T.M. No. 249226-B. 4. A proceeding was initiated as regards registration of the trade mark. No opposition was filed by the respondent. Only one M/s. Mohan Meakins filed an opposition. The said trade mark was registered. 5. Respondent Nos. 1 and 2 came to know of the appellant's mark on or about 20th September, 1974. They filed an application for rectification of the said trade mark on 21st April, 1986. We may also notice that a suit for passing off has also been filed by the 1st respondent and others in the Bombay High Court being C.S. No. 1729 of 1987, which is stated to be still pending. 6. Appellant having been calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also unexplainable and inexcusable delay on the part of the respondents in filing the rectification application, the registered proprietors failed to file any evidence nor did they raise their little finger to rebut the evidence filed by the applicants/respondents. The plea of acquiescence/delay raised by the appellant was negatived on the ground that the plea of deceptive element in the impugned mark having neither been displaced nor rebutted by evidence on the part of the registered proprietors, the pleas of delay and acquiescence cannot be allowed in favour of the registered proprietors. 11. On the affidavit evidence filed on behalf of the respondents, respondent No. 3, although opined, that the same was not satisfactory but held the respondents' plea that the impugned registration contravenes Section 11 of the Act, stating: Nonetheless, the evidence gives an impression that some customers are being persuaded into thinking that PETER SCOT brand Whisky is also a Scotch Whisky. This is on account of the presence of two factors, namely - (1) the presence of the word Scot in the PETER SCOT mark and (2) the presence of some slogan on the Whisky bottles under PETER SCOT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents as evidence though justified to some extent does not help the appellant to avoid rectification. The statutory standard is not the actual confusion and deception but likelihood thereof. The term 'Scot' when used in association with whisky of non- Scottish origin is inherently capable of and is likely to cause confusion and deception. 16. Feeling aggrieved, an intra court appeal was preferred thereagainst by the appellant. A Division Bench of the High Court, as noticed hereinbefore, dismissed the said appeal. The Division Bench noticed at some length the submissions made by the parties to inter alia hold: We have carefully considered the abovesaid submissions made by the counsel on either side. In our considered view, the use of the device 'Lion Rampant' and the abovesaid description especially the description 'Distilled from the Finest Malt and Blended with the Choicest Whiskeys by Scotch Experts under Government Supervision' is definitely intended to lead the consumers to believe that the whiskey manufactured by the appellant is scotch whiskey. Though specific averments as above said have been made in the affidavit on Ian Barclay, the same have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the emblem of Rampant Lion with the words 'Distilled from the Finest Malt and Blended with the Choicest Whiskies by Scotch Experts under Government Supervision' must be read with the word 'PRIDE OF INDIA' and the names of the appellant and the fact that it was manufactured at Bangalore. 6. The Division Bench of the High Court committed a serious error in so far as it failed to take into consideration that having regard to the provisions contained in Section 26 of the Geographical Indication of the Goods Act, 1999 (for short 'the 1999 Act'), the rights of trade marks which had been acquired through use in good faith were protected and thereby committed a serious error in not allowing the appellant to raise the said contention, on the premise that the same was being raised for the first time before it. Mr. Ashok H. Desai, learned Senior Counsel appearing on behalf of the respondent Nos. 1 and 2, on the other hand submitted :- (i) The findings of fact arrived at by the respondent No. 3 and as affirmed by the learned Single Judge and the Division Bench of the High Court should not be interfered with as they cannot be characterized as extraneous or perv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on; or (b) the use of which would be contrary to any law for the time being in force; or (c) which comprises or contains scandalous or obscene matter; or (d) which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; or (e) which would otherwise be disentitled to protection in a court, shall not be registered as a trade mark. 27 - No action for infringement of unregistered trade mark.- (1) ... (2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. 56 - Power to cancel or vary registration and to rectify the register. (1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 18 or Section 21, it shall not be open, save with the express permission of the court, to the Registrar or any party opposing the appeal to advance grounds other than those recorded in the said decision or advanced by the party in the proceedings before the Registrar, as the case may be, and where any such additional grounds are advanced, the applicant for registration may, on giving notice in the prescribed manner, withdraw his application without being liable to pay the costs of the Registrar or the parties opposing his application. (8) Subject to the provisions of this Act and of the rules made thereunder, the provisions of the Code of civil procedure, 1908 (5 of 1908), shall apply to appeals before a High Court under this Act 20. Although a large number of issues have been raised by the learned Counsel for the parties, we are of the opinion that the principal issues which arise for our consideration are: (i) Whether the delay on the part of the respondent Nos. 1 and 2 in filing the application for rectification would amount to acquiescence and/ or waiver? (ii) Whether the respondent No. 3 as also the learned Single Judge and the Division Bench of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling actions against several persons infringing the said mark in India but also in several other countries like Australia and United Sates of America. Ian Barclay in his affidavit stated: The first applicant received notice of the advertisement of the said mark PETER SCOT in the Trade Mark Journal when it received a routine report from 'Wildbore and Gibbons dated 20th September, 1974. Regrettably, the first Applicant did not lodge opposition with the time allowed. 27. Respondents, therefore, were well aware that the appellant had filed an application for registration. One of the questions which was raised before respondent No. 3 as also before the High Court was as to whether Article 137 of the Limitation Act, 1963 would apply to the rectification proceedings. Keeping in view the decision of this Court in Sakur v. Tanaji 1985(22)ELT327(SC) , evidently the same has to be rejected as the Registrar is not a court. 28. The submission of Mr. Nariman, however, is that the period of three years provided for should be taken to be the upper limit as an equitable jurisdiction is to be invoked. Our attention in this behalf has been drawn to the decision of this Court in State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.' 29. We are unable to accept this submission. What would be the reasonable period in a given case would not depend upon the nature of action initiated before a statutory authority but also upon the purport and object of the statute. If the reliefs sought for before the superior courts are the same which could be sought for in a suit, the period of limitation specified for in the Limitation Act may be taken to be the criteria for consideration as to whether the same should be treated as a reasonable period, but not otherwise. In Bhailal Bhai and others (supra) a writ petition was filed for refund of the tax which was legally collected. It was essentially a money claim and in that context the aforementioned observations were made. 30. It was next contended that the appellant suffered a great prejudice by reason of delay as during the said period of 18 years the sales figures had gone up. Our attentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mark would be necessary to be considered only in the course of the enquiry conducted therefore. A Registrar of Trade Mark is not supposed to know that there exist other marks which are registered or which would deceive or cause confusion with any other established mark. In a given case, the Registrar of Trade Mark may be aware thereof. But, in some cases, he may not be. It may, therefore, not be correct to contend that Section 11 of the Act prohibits the Registrar for registration of marks which would likely to deceive or cause confusion. 36. Indisputably, the purity of the Registrar is to maintain the register. Indisputably again, the public interest has to be kept in view. An application for registration has also to be considered keeping the public interest in view. What is therefore, necessary for the Registrar is to arrive at a conclusion as regards registration of mark, is as to whether having regard to the nature of the mark sought to be registered and the use thereof as also the class of bias, would be deceived or confused with the mark registered or not. 37. An application for rectification and correction of the register may be entertained if any of the grounds speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not the case of the respondents that any fraud was practised by the appellant. 43. Appellant started manufacturing of the product as far back as in the year 1968. It marketed two brand names, viz., Peter Scot and Red Knight. It is said to have been done for making the name attractive. It was a period when there were restrictions on import of Whisky. The custom duty was high. The price of a genuine Scotch Whisky was prohibitive for a large section of the consumers. Appellant applied for registration in the year 1971. 44. Ian Glen Barclay affirmed an affidavit in support of the respondents. He, in his affidavit which otherwise remained uncontroverted, admitted that the respondents were aware of registration of the mark through an advertisement made in a trade mark journal at the instance of the appellant as also a report received from Wildbore and Gibbons dated 20.09.1974. Respondent No. 1 had issued a notice. It also issued a notice in respect of an application filed by the appellant for registered proprietors trade mark 'Hogmanay' which led to withdrawal of the said application by the appellant before hearing. He also affirmed that there are provisional trade mark a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr. v. Pravara Sahakar Shakar Karkhana LTD AIR1992Bom294 . (Drum Beater, Gold Tycoon) (Bombay High Court) 17. SWA and Anr. v. Scottish Distilleries and Ors. (Macqueen and Black Kilt) (Bombay High Court) 18. SWA v. Silver Oak Blenders and Bottlers Private Ltd. and Anr. (Windsor Club) (Bombay High Court). 19. SWA v. Maharashtra Manufacturing Corporation and Ors. (Black Skipper, White Scot Salute India) (Delhi High Court) Decisions of Foreign Courts: 20. SWA v. Societed Importation e de Distribution des Grandes Marques (Judgment dated 23rd January, 1992 of the Commercial Court of Saint Etienne, France) 21. SWA and Anr. v. Pollini Liquori Spa (Judgment dated 19th March, 1980 passed by the Court of Rome, Italy) 22. SWA and Ors. v. Bartaon Distillery Co. (Judgment dated 12th November, 1973 passed by the United States Court of Appeal, Illinois) 23. SWA and Anr. v. Ewein Winery (M) Sdn. BhD [1999] 6 MLJ 280 (Malaysia) 46. The details of the cases aforementioned would clearly go to show that not only oppositions were made, but also actions were initiated against the persons who used the word 'Scot' as also against those who used the words 'Highla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Scotland for use on Indian Whisky. In this connection I crave leave to refer to and rely upon the judgment of the Delhi High Court (see Exhibit X-4). I say that the Appeal to the Supreme Court from the same judgment had not yet been decided. 44. I say that the 1st Applicant, having failed to lodge opposition to the 'Peter Scot' application within the prescribed period, was awaiting the decision of the Supreme Court before adopting proceedings against the registered proprietor for rectification of the mark PETER SCOT. However, in recent years, the 1st Applicant learned that various other parties were attempting to adopt the word 'SCOT' as part of their trade marks, and/or other marks with Scottish Connotations. therefore, the 1st Applicant decided that it could not afford to wait for the decision of the Supreme Court and proceedings were adopted by filing passing off actions which are referred to in the annexures referred to hereinabove, as well as the rectification proceedings against the registered proprietor. Thus, the delay is due to the aforesaid facts.' 50. Ex facie, the said explanation is wholly unacceptable. 51. Even before us, the result of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant.... But at p. 264 the learned author points out that the demerits of the applicant in any such case are irrelevant to the question whether rectification should be ordered or not, for the question is not between the applicant on the one hand and the respondent on the other, but between public and the respondent. But the learned author further points cut at p. 272 that where the objection alleged to a mark is that it to the same as that of the applicant, or that it has such resemblance to his as to be calculated to deceive, it will be some evidence against the applicant, on whom the burden lies of showing that the registration was made without sufficient cause, if he had stood by and allowed the registered proprietor to use the mark objected to for a length of time, especially if no case of actual deception is proved. But the learned author also points out that in such a case two things have got to be considered; first, what was the reason of the delay in the application to expunge; and, secondly, whether any substantial injury has been caused by the delay to the person who has registered. therefore, the question of delay must be approached from this point of view whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther decisions, Oliver, L.J., noticing a decision in Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. (Note) [1981] 2 W.L.R. 576 opined: Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle-whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial-requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour. It was held: I have to acknowledge my indebtedness to counsel on both sides for some illuminating arguments, but at the end of them I find myself entirely unpersuaded that the judge erred in any material respect. He concluded his judgment in this way on the question of estoppel: 'Of course, estoppel by cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to the acts of another person and in view of that assent or laying by and consequent acts it would be unjust in all the circumstances to grant the specific relief. It was furthermore observed: 108. Specific knowledge on the part of the plaintiff and prejudice suffered by the defendant is also a relevant factor. (See Spry on Equitable Remedies, 4th Edn., p. 433.) 65. In Halsbury's Laws of England, Fourth Edition, Vol. 16, para 1505, it is stated: Where a person has by words or conduct made to another a clear unequivocal representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man, understand that a certain representation of fact was intended to be acted on, and that the other has acted on the representation and thereby altered his position to his prejudice an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be. 66. Delay would be a valid defence where it has caused a change in the subject matter and action or brought about a situation in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e denied. 69. In Mc Donald's Corporation and Anr. v. Sterling's Mac Fast Food Represented by its Partner John Mathew ILR2007KAR3346 , the Karnataka High Court held: 9. Though the plaintiff adopted its registered trade mark BIG MAC in 1968 in USA, in paragraph 7 of memorandum of appeal it is stated as under: 7. The first appellant is the proprietor in India of other McFamily trade marks having prefix or suffix Mc/MAC and it has also applied for registration and most of them were registered during the pendency of the suit and the trademarks are used in India since October, 1996. From the above, it is clear that the plaintiffs are using their trade marks in India since October 1996. However, in the very next paragraph it is stated as under: 8. The first appellant was given approval on February 15, 1993 by the Government of India to operate a chain of restaurants in India. The second appellant was incorporated and registered with the Registrar of Companies on August 30, 1993 vide (Ex. P-30). It is thus clear that plaintiffs got registered in India in the year 1993 only. On the other hand, the defendant has been carrying on with its business since 1983. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rease in the volume of sale of Peter Scot, on the other hand, it was urged that if a comparison is made of the Indian whisky and Scotch Whisky it would appear that some Indian whiskies are costlier than some of the Scottish brands. The stand taken by the respondents is self contradictory. We think that their stand is not fair. 76. We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that action of the respondents is barred under the principles of acquiescence and/ or waiver. 77. The power conferred on the Registrar is discretionary in nature. In a given case, the Registrar may not exercise its jurisdiction. [See Kabushiki Kaisha Toshiba v. Tosiba Appliances Co. and Ors. MIPR2008(2)195 decided on 16th May, 2008] RE: ISSUE No. 2 78. Another principal question which arises for consideration is as to whether the use of the term 'Scot' would itself be a sufficient ground to form an opinion that the mark 'Peter Scot' is deceptive or confusing. Indisputably, the onus of proof therefore would be on the respondents. Whether they have discharged the said onus is the question? 79. The nature of a passing off action vis-a-vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priority date of the Application, had acquired a reputation in Australia for scotch whisky and scotch whisky-based liquors as envisaged under Section 60 of the Trade Marks Act, 1995. In that proceeding also Ian Barclay had affirmed an affidavit in favour of respondent No. 1-Association. As regards the market (s) and consumer knowledge, it was held: 33. There are two classes of consumer in the scotch whisky and bourbon markets: the involved consumer and the uninvolved consumer. The knowledge of these consumers may be obtained in several ways - including labels, customer salespeople, word of mouth and past experiences. 84. Noticing the details involving the manufacture of scotch whisky that it is ordinarily made from barley; it originates in Scotland ; if there are two forms of whisky : blended and malt ; it has various brands and its alcoholic content is at least 40 % by volume. It has further been noticed: 35. All the applicant's expert witnesses would fall within this class of consumer. Given the market is quite small, product distinction between scotch whisky and other products is more readily discerned by consumers in this class. They would also be aware that scotc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the GLENN OAKS mark and marks used before its priority date. The approach in Pianotist Co's Application (1906) 23 RPC 774 at 777 is oft cited. There, Parker J said: You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all of the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks are used in a normal way as a trade mark for the goods of the respective owners of the marks. 67. That passage was cited with approval in Cooper Engineering Co. Pty. Ltd. v. Sigmund Pumps Limited (1952) 86 CLR 536 at 538 and in Woollen Mills at 658, where Dixon and McTiernan JJ described the comparative analysis as follows: In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be taken into account in deciding whether two marks which really looked alike or sounded alike were likely to deceive. As Lord Parker said in the passage cited, you must consider the nature and kind of customer who would be likely to buy the goods. A purchaser of spray nozzles and sprinklers would not be likely to be lacking in discernment. He would not be in a hurry to buy. He would not be likely to pay any attention to the presence of a common word like rain in the combination. That prefix already appears in other trademarks for goods of the same description sold on the Australian market such as Rainwell, Rainmaker, Rain Queen, and Rainbow. The learned register was right in holding that the only similarity between the two marks is the common prefix 'Rain' and that this similarity is not sufficient to create a reasonable likelihood of deception when the remaining portions of the marks are so different. (at p539). 89. Our attention has also been drawn to an order of a Delegate of the Registrar of Trade Marks in Re :- Opposition by Southcorp Wines Pty Ltd. to the registration of trade mark application number 749793 in the name of Kemeny's Food Liquor Pty. Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The variety of goods on which a mark is or is not used (house mark, family mark, product mark). 10. The market interface between applicant and the owner of a prior mark: (a) a mere consent to register or use. (b) agreement provisions designed to preclude confusion, i.e. limitations on continued use of the marks by each party. (c) assignment of mark, application, registration and good will of the related business. (d) laches and estoppel attributable to owner of prior mark and indicative of lack of confusion. 11. The extent to which applicant has a right to exclude others from use of its mark on its goods. 12. The extent of potential confusion, i.e., whether de minimis or substantial. 13. Any other established fact probative of the effect of use. As regards public interest, the learned Judge held: Whether offered in response to a right-to-use argument or against any of the evidentiary considerations listed above, citation of the public interest as a basis for refusal of registration is a bootless cry. [fn8] We need add little to the shattering of that shibboleth in the concurring opinion in National Distillers, supra, and in the dissents in Ultra-Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal Board has acquired a high level of expertise in evaluating the DuPont factors and counter-weighing these factors to reach its ultimate conclusion -- the likelihood vel non of confusion between competing marks. Nonetheless, the Board too should explain with reasonable 'precision' not only its factual findings but the 'theory underlying' its final conclusion. We need to be told and not be 'compelled to guess at the theory' the Board applied to compare its conflicting findings and decide likelihood of confusion. Without such explanation we are hard-pressed to review independently, as we must, whether the Board's ultimate conclusion is legally correct. In such circumstances, we cannot assure ourselves that the Board did indeed 'engage in reasoned decision- making. 93. It was observed: Because the Board in this case failed to 'supply a synthesis' of its conflicting findings that would enable us to 'discern the path' to its ultimate conclusion, I initially wondered whether its conclusion of no likelihood of confusion in this case was correct. As our per curiam opinion notes, however, it is perfectly lawful for the Board to dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have failed to cite even a single instance showing that there was confusion in the minds of the customers. The absence of evidence of actual deception is a circumstance which definitely weighs in favour of the defendants. It is also necessary to mention that the defendants have produced on record voluminous evidence showing that such premixtures are sold by several other companies under the names American Extra Dry Gin with Lime Duet Plus , Forbes Two in One Dry Gin and Lime , Rainbow Gemlet Gin and Lime etc. In my opinion, there is no possibility of any confusion in this case at all. 96. Yet again in Diageo North America, Inc. and Anr. v. Shiva Distilleries Ltd. a learned Single Judge of the Delhi High Court held as under: 14. So much for the second syllable. As regards the first syllable, I find that there is no similarity between SMIR and BRIS. Although the learned Counsel for the plaintiffs had submitted that all the letters are common except the letter and M in SMIR and the letter B in BRIS, this, to my mind, is of no consequence because the arrangement of the letters is entirely different, as is the phonetic and visual result. I also agree with the submission made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be applied in a country like India may be different from the tests either in a country of England, United Sates of America or Australia. We however, do not mean to suggest that in a case of this nature, the Heightened Scrutiny Test should be applied as urged on behalf of the appellant. Bollinger, J. and Ors. v. Costa Brava Wine Coy., Ld. 1960 (1) RPC 16, whereupon Mr. Desai has strongly relied upon, makes such a distinction. Bollinger, J. (supra) was a case on demurrer. It was concerned with sale of Spanish Champagne. In that case, in paragraph 4 of the application, the applicant stated: Then in Para 4 they deny that this name 'Spanish Champagne' is a false description, and they continue: 'The defendants deny that the said section imposes any statutory duty on the defendants or any statutory duty owed by the defendants to the plaintiffs. Alternatively, if the said section does impose any such statutory duty the same is not actionable at the suit of any of the plaintiffs or at all'. 101. The court proceeded on certain assumptions which are: (1) the Plaintiffs carry on business in a geographical area in France known as Champagne; (2) The Plaintiffs' wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action. 105. J. Bollinger and Ors. v. The Costa Brava Wine Company Limited (for short Bollinger II) 1961 (5) RPC 116, however, clearly shows as to what was the test applied. The inference deduced from the evidence adduced was noticed in the following terms: In particular, it appeared from the evidence that Champagne is a wine specially associated with occasions of celebration so that (in addition to sales to persons who regularly buy wine) it is purchased on such occasions from time to time by many persons who are not in the habit of buying wine for consumption and are not educated in the nature or qualities of different kinds of wine. 106. Holding that 'Spanish Champagne' may lead to ordinary belief into thinking that wine so described was the real thing, it was observed: Moreover, when the case is tried in an atmosphere of educated persons, many of whom are well acquainted with the qualities of various wines, it may seem absurd that persons should be deceived by what may appear to be a transparent impersonation. It was argued indeed that Champagne was so well known that everyone except a trifling minority of ignorant persons (who were not to be considered, esp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair amount about it. In the second category some. But there would be a considerable number in my area who would know nothing about it except that it was a wine they wanted for a special occasion or for something in their life they wanted to celebrate with. They would then want that. That is how much they would know about it- just a general outline'. It was furthermore held: There is thus, in my view, a considerable body of evidence that persons whose life or education has not taught them much about the nature and production of wine, but who from time to time want to purchase Champagne, as the wine with the great reputation, are likely to be misled by the description 'Spanish Champagne. Something was said on the subject of the burden of proof. Well, burden of proof is something which may shift in the course of an action. It appears to me that when the plaintiffs have shown that a description used by the defendants contains an untruthful statement that a wine which is not Champagne is Champagne, they have gone some way to establishing their case, and the Court might require to be satisfied that such an untrue statement was so clearly qualified as to be not likely t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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